Understand Your Risks from Negligence and Strict Liability

Let’s now take a look at the second of the three categories of tort, which is the tort of negligence. In every day language, negligence is carelessness. Carelessness that injures another person’s property or body. Now, when you are sued for negligence, or when your company is sued, the actual proof of negligence will be a little more sophisticated. And specifically there are four elements necessary to prove negligence. First of all, the courts will ask did you owe a duty of care to the person who is injured? Second element, did you breach that duty of care? Third, was there an injury?

And finally, is there some kind of a link between the breach of duty of care and the injury; which lawyers refer to as causation. Let’s try this example, let’s assume, that I am out for a walk in the town of Ann Arbor where I live. And you are driving a car, and as you’re driving, you’re not paying attention to the road. You’re observing joggers alongside the road, or bicyclists, or the scenery. You’re not paying attention to other drivers. You’re not paying attention to pedestrians. I cross the street at a stop sign. You missed the stop sign and you plow into me with your car. Have you committed a tort?

Well of course the answer is yes, this is what we call a no brainer. You do not need a brain to do an analysis of this case. First of all, you as a driver owed a duty of care to me the pedestrian and to other drivers. Second, you breached your duty of care by not paying attention to your driving. Third, I was injured, we’ll assume, when your car plowed into me. And finally, there’s a link between your breach of duty of care and the injury. You caused the injury. And in fact, automobile accidents are probably the most common type of accident in the world.

Now where courts face challenges in many cases is determining whether there is a duty of care. So just a quick example, a few years ago I was teaching a law course in Beijing. And after class one day I decided to go for a walk, and I brought with me some notes from the course that I was looking at to prepare for my lecture the following day. And as I was walking along, I suddenly realized I was headed directly toward an open man hole. Now let’s assume that you were walking in this area. You saw me reading and walking toward the open manhole, and you think to yourself, golly this is really going to be exciting.

And so, you run around to the other side of the manhole, to get a better look, as I slowly walk toward the manhole, fall in, and break a couple of legs. Let’s assume I’m hospitalized, I lose wages, I suffer. I have a lot of pain and suffering, and so I sue you for hundreds of thousands of dollars. Are you liable? Have you committed the tort of negligence? Well, this is the type of case that causes a lot of difficulty in courts around the world, because they have to determine whether you owed a duty of care to me, to say watch out.

All you had to do was to give me a warning, and all this pain and suffering, and hospital bills, and lost wages, would have been avoided. In the United States’ system, the general rule is in this type of situation, there is no duty to warn somebody that they’re facing a danger, unless of course you cause the danger. But generally, no duty of care to give the warning. This duty is different in some other countries. And even in the United States there are variations. For example, if you see somebody who’s being victimized by a crime in a few states you at least have a duty to report the crime.

But courts constantly wrestle with that question, when is there a duty of care and when is that duty missing? So, that covers the key elements of negligence, and now let’s go on to the final tort, which is the tort of strict liability. And with strict liability, courts determine that in some cases, even though you did not intentionally injure someone, which would be an intentional tort. And even though you were not careless in injuring somebody, which would be the tort of negligence. You can still be held liable because you are involved in a dangerous activity. Such as for instance, being involved in a dynamiting operation, blasting operation, such as owning wild animals that might injure someone.

A few years ago, I read about an incident in a neighborhood on the outskirts of Ann Arbor, where I live. Apparently, one of the home owners in this neighborhood owned three wild animals, two bears and a cougar. And the neighbors were very upset by having these wild animals in the neighborhood. Especially one of the neighbors who once looked out his picture window in his house, and saw the cougar looking in from the outside of the picture window. And to me, this is a classic case of strict liability.

In other words, even though the owner of the animals did not intentionally injure anyone, even though the owner might be extra careful in caging the animals, if for some reason, an animal got loose and injured one of the neighbors, a court would probably hold that person liable under the theory of strict liability. I’m not sure how this neighborhood dispute was resolved, but if you ever visit Ann Arbor, and if you decide to go for a jog through certain neighborhoods, you might want to take with you three slower joggers. Okay, so that concludes our look at the three categories of tort.

And now we’re going to move on and take a look at how tort law has a big impact on business operations.